Koach Kavanaugh targets U.S. v. Virginia
By 
Alexis Romero has a good piece about the latest anti-trans opinion from the Supreme Court. One thing worth emphasizing about West Virginia v. B.P.J. is that the lawsuit was advanced on narrow grounds, seeking only an exemption from West Virginia’s total ban on participating by trans athletes only if it could be demonstrated that their participation would not pose any safety or competitive balance issues for other athletes. As the Republican Party becomes more and more fiercely transphobic, however, this still went too far for the Court:
It’s important to appreciate that the students pressed for the narrowest, most modest ruling possible. They did not ask the court to find that the entire system of separate boys’ and girls’ sports was unlawful discrimination. They didn’t even ask the court to require states to permit all trans athletes to participate in the sports team of their choosing. All they asked for was for their school to make an individualized assessment as to whether they could fairly play with their friends and classmates given their specific medical circumstance. And their case was especially strong, since B.P.J.’s near decade of hormone use had minimized if not outright eliminated any biological advantage a school might believe she had from being born a biological male. But the court couldn’t give them even this, as Kavanaugh’s opinion showed extreme deference toward right-wing states’ ability to treat physical differences as “enduring” with no room for exceptions.
This deference is warranted, the justice argues, because of just how supremely important sports are to the development of young people. In several places, the opinion slips into a love letter to competition, going on and on about the “extraordinary time and effort” girls take “to get a little faster, to become a little stronger, to jump a little higher.” Kavanaugh’s writing reads like an unreleased script of Friday Night Lights. But as important as sports and competition are, Kavanaugh asserts, they are also “zero sum,” so allowing transgender girls a spot on the team risks taking a spot on a roster from what he sees as a more deserving cisgender girl.
Ultimately, while he seeks to protect young girls, Kavanaugh actually coddles them. He argues that West Virginia’s ban is necessary for safety because of the physicality of contact sports, even as B.P.J. was doing nothing more than throwing a shot put on a field or running with her classmates. And more to the point, physical differences between athletes are an inherent part of sports. You don’t think 7-foot-4 NBA superstar Victor Wembanyama has biological differences from 6-foot-2 New York Knicks icon Jalen Brunson? But these differences are exactly what make the latter’s victory in the championship all the more sweet. And in any event, the typical differences among players pale in comparison to the relatively small differences between a cis student athlete and a trans student athlete who has receiving hormone therapy for years.
Kavanaugh’s opinion blows by these differences with an irritating air of judicial modesty. He cites Chief Justice John Roberts’$2 2025 opinion allowing states to ban medical care for trans minors, noting that the “calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility,” meaning that courts should be careful before “swooping in and invalidating laws.” Never mind that on the very same day as this case was decided, Kavanaugh himself wrote a different constitutional opinion for the court that overturned precedent and invalidated a campaign finance law. Apparently letting the “political branches” decide controversial issues doesn’t apply to stopping super PACS from dumping millions into politicians’ campaigns.
What’s worse is that Kavanaugh’s opinion also undermines the logic of the equal protection landmark U.S. v. Virginia, in which the Court held that the state could not use the fact that most women (like most men) had no interest in the “adversative method” of education to exclude them entirely from schools offering it:
As Justice Sonia Sotomayor explains, the court’s constitutional precedents here required it to at least send the case back for more fact-finding as to whether B.P.J. can demonstrate that she belongs in a small yet reasonable class of people who deserve exemptions from her state’s ban. After all, the entire project of sex-based scrutiny that the court has applied for decades is all about determining whether the government may discriminate against a particular subclass based on general assumptions about the group as a whole. The majority rejects this precedent, and in doing so, the court flips upside down the late Justice Ruth Bader Ginsburg’s most consequential decision striking down the male-only admission policy at a Virginia military school.
And the next step is likely going to the the Court displacing the more tolerant policies of blue states:
The debate over the appropriate sex-discrimination standard previews the next battleground of litigation in this space. West Virginia is one of 27 states to ban or restrict transgender sports. But in blue states, conservative parents have begun to pursue the opposite claims as B.P.J., arguing that their cisgender kids have a constitutional right to exclude trans students from school sports. Just as B.P.J. and L.H. unsuccessfully tried to wield the 14th Amendment as a shield from discrimination, conservative Christian parents are already trying to use equal protection as a sword. As the court ominously notes, Justices Samuel Alito, Amy Coney Barrett, and Clarence Thomas seem to agree with the related argument that laws that discriminate on the basis of transgender status deserve the most lenient judicial scrutiny. (Thomas, seen yesterday chuckling as he strolled down the House GOP chambers, wrote a concurrence blessing the worst of the right-wing legislators’ most transphobic instincts. His two-page concurrence is so vile that it’s not worth any more commentary than this parenthetical.)
Thomas’s correctly described concurrence begins with the premise that “[a] man does not have a legal right to compete against women just because he believes that he is a woman” and gets no less disgusting from there. But Kavanagh’s majority reflects the same underlying sentiment even he prefers it to remain subtextual.